Bachchu Paul vs Dulal Ch. Roy

[1] This appeal is filed by the original objector who had opposed to the miscellaneous civil application [Civil Misc.(GC)36 of 2017] filed by the respondent herein under Section 7 of the Guardians and Wards Act, 1890 (hereinafter to be referred to as the 'said Act') for appointing him as a guardian of the minors and for permitting sell of the property of the minors.

[2] Brief facts are as under :

The said application was filed by the respondent before the Civil Court pointing out that his wife Putul Roy expired on 16th September, 2014 leaving behind the said applicant and minor daughter and son. The deceased had left behind immovable property which would be inherited by the husband and the two children. The applicant pointed out that he was a labourer suffering from various illnesses. It was difficult for him to meet with the expenses of the children. He had already taken loan. He, therefore, needed to sell the family property left behind by his wife. Under the Court order, he had issued newspaper publication inviting objections. No objections were received. Sometime later thereafter, however, the present appellant Bacchu Paul appeared and filed an application to allow him to be joined as a respondent in the said proceedings on the ground that he had filed a suit challenging the gift deed dated 6th October, 2010 which was the subject matter of the said proceedings. His case was that the land in question was gifted to the wife of the present respondent by Maya Rani Paul. He had challenged the gift deed on various grounds. Learned advocate for the appellant submitted that in such suit the present appellant had also put up a case that the land was given to the appellant by Maya Rani Paul under a Will before she expired on 15th November, 2011.

[3] The learned Judge in the impugned judgment noted that the suit filed by the appellant herein was dismissed by the trial Court by a judgment dated 17th June, 2016. The Court had given sufficient time to him to submit a stay order in appeal which he claimed to have filed. However, he failed to produce any such stay order till 5th February, 2019 or even till the date of passing of the judgment. The Court noted that the injunction application filed by the said objector was rejected by the Court on 1st February, 2019. The Court, thereafter, proceeded to examine the request of the applicant and found valid reasons to permit him to dispose of the properties including the interest of the minors. He was, therefore, appointed as the guardian of the minors and permitted to dispose of 50% share of the land. This judgment the appellant-original objector has challenged in the appeal.

[4] Having heard learned counsel for the appellant, I do not find any error in the view taken by the trial Court. In the application filed by the respondent, the trial Court was primarily concerned with the provisions of the said Act and the question of appointing the applicant as a guardian of the minors and the necessity for disposing of the properties of the minors. The said application was not a title suit and cannot be allowed to be converted into one. Whatever the objection to the title of the applicant or the minors the present appellant-original objector may have, he has to establish through independent proceedings. Only in such proceedings, the titles to the property can be decided. In fact, the appellant has instituted such proceedings. His suit questioning the legality of the gift deed and asserting his title through the alleged Will of the original owner Maya Rani Paul, came to be dismissed. He has filed appeal before the District Court. Such appeal is pending. Pending the suit and thereafter pending the appeal, no stay has been granted in his favour.

[5] Whatever the merits or demerits of the case of the appellant in such proceedings, he cannot object to the respondent herein being appointed as a guardian of his two minor children and question the decision of the Court exercising powers under the said Act on the ground of necessity of disposing of the properties of the minors. The two proceedings stand on entirely different footing. If the appellant desires that the respondent herein should not be allowed to dispose of any part of the said property, he has to succeed either by way of interim injunction or by way of final decree in his favour demolishing the gift and holding that by way of Will he had acquired the title to the said property. His request that till the appeal against the dismissal of his suit is decided, the respondent herein be prevented from proceeding further in terms of the judgment of the Court below challenged in the present appeal, cannot be granted. What he did not achieve in his independent proceedings, cannot be allowed to be achieved indirectly in the present proceedings.

[6] Before dismissing the appeal only clarification that needs to be made is that the impugned judgment of the Court below is not a certificate of title to the said lands in favour of the respondent or his children. Such titles can be judged only in independent proceedings which the appellant has already instituted.

With these observations, appeal is dismissed. Pending application(s), if any, also stands disposed of.